Does New Jersey Need to Update Its Definition of “Mother”?

Imagine availing yourself of all the advancements in reproductive technology in order to conceive the child you thought you may never have just to have the courts say you haven’t earned the title of “Mom.” That is exactly what has happened to a Union County couple now fighting to update State law.

The couple conceived a child through in vitro fertilization, a process whereby the egg is fertilized outside the womb and then implanted into the mother. In this case the egg came from a donor and a surrogate carried the baby to term. As a result, the intended mother has no genetic or biological relationship to the child. (1)

Before the child’s birth 19 months ago, a Superior Court judge issued a pre-birth order permitting the wife’s name to be listed on the birth certificate as the child’s mother. The Bureau of Vital Statistics challenged this ruling and an Appeals Court sided with the Bureau, ruling that the woman would have to adopt the child in order to be recognized as his mother by State courts. (2)

Under State law, husbands are presumed to be fathers whether or not their sperm was used in conception. Wives, however, are not presumed to be mothers unless their eggs or bodies were used for the conception and/or pregnancy. (3)

New Jersey’s current parentage definitions stem from the highly publicized 1986 Baby M case. That child was conceived through artificial insemination, whereby sperm is placed inside the woman and her own egg is fertilized in her own body. Although a surrogate was also involved in that case, the courts recognized the husband as the child’s legal father. State law has not been updated since then, although reproductive technology has been. (2)

Participants in the current case point out some legal ramifications that could arise when the “mother” is not recognized by the courts. For one thing, if something were to happen to the mother before the adoption was finalized, the child would be denied benefits he may otherwise have been entitled to, including insurance and Social Security. If named a beneficiary in his mother’s will, he could also be subject to inheritance taxes which are waived for legally recognized children. (1)

While the couple is seeking to have State laws revised to keep up with changes in reproductive technology, the Appellate Court contends this is a question for the State Legislature, not the courts. (2)